Valuing pain and suffering in employment discrimination cases (Part III)

The great mystery in valuing civil rights cases is how much money the jury might award the plaintiff if the plaintiff prevails at trial. That calculation looms over the case. During litigation, the parties will talk about settlement periodically, especially after the judge pushes them to do so. Once the lawyer decides what the case might be worth (based on the strength of the case and the nature of plaintiff's emotional distress), she has to sell that number to the client, who will naturally want more money. Hey, we all want more money. Except that defendants don't want to pay any money. Everyone walks away unhappy, which makes it a good settlement. One way to assist in this process is by reviewing case law to see what the judges are up to.

The case is Stevens v. Rite Aid Corp., No. 6:13-CV-783, 2015 U.S. Dist. LEXIS 127312 (N.D.N.Y. Sep. 23, 2015). Plaintiff was a pharmacist who was fired because he was unable to administer injections for immunizations, and "suffers from trypanophobia, also called needle phobia." The jury awarded him $900,000.00 in pain and suffering.

This is how the parties argued post-trial about the pain and suffering: 

Defendant argues that the jury's verdict of $900,000 in compensatory damages is not supported by the evidence at trial, contending: "Plaintiff's alleged damages were solely for garden-variety emotional distress and are far beyond the maximum damages supported by the evidence at trial." Plaintiff counters that his emotional damages are supported by his own testimony about the emotional toll that his termination placed on him, particularly due to the facts that he was no longer able to financially provide for his family which was very troubling for him because he had a difficult childhood growing up in poverty; and by his wife's testimony that Plaintiff could not eat, lost weight to the extent that he "looked like, you know, a cancer patient," often woke up "thrashing around," had sleepless nights, and had nightmares - symptoms she described as "profound." Plaintiff argues that based on the Jury's $900.000.00 compensatory damage award, "the evidence in this case supports a finding that Mr. Stevens' claim for emotional distress fell somewhere on the continuum between 'significant' and 'egregious,' thereby justifying the Jury's award of $900,000 in compensatory damages in this case."

The judge decides that plaintiff is really entitled to $125,000 in pain and suffering. That number is in line with similar cases. As Judge McAvoy writes, "there was no medical testimony or evidence corroborating the emotional distress that Plaintiff suffered, nor was there evidence of any medical or psychological treatment obtained by Plaintiff to address his distress and its symptoms. While Plaintiff's and his wife's testimony about the emotional effects of a discharge at age 57 was compelling, it did not elevate it beyond the 'garden variety' category. 'Courts have sanctioned jury damages ranging from $30,000 to $125,000 for 'garden-variety' emotional distress.'" If you want to see the other cases that provided guidance in this area, take a look at the opinion. 

$125,000 is still a lot of money. But it's not $900,000. So I am sure the plaintiff is disappointed. But I wonder what the jury would think about this. The judge always tells the jury that "the case is in your hands" and "you are the sole judges of the facts." For the most part, that's true. When the summations are done and the judge reads out the jury instructions, the cases is in their hands. And most factual findings are not disturbed on appeal. But the jury has no idea that the damages awards will be closely reviewed by the attorneys and the court for the next few months (or longer) to decide if the jury really got it right. And very often, at least as far as the court is concerned, the jury does not get it right. The judge will not provide much guidance to help the jury fix a pain and suffering amount, other than to "give the plaintiff an amount that you think is fair." The jury is not given a chart containing prior damages awards, and it may not even know the judge will review the propriety of the damages post-trial. Nor does the jury give any reason for the damages award. It just writes in a number and turns in the verdict to the court clerk. What is really happening is that the damages awards for pain and suffering are quasi-advisory verdicts. The provide a starting point for the judge to second-guess the amount.